MEMORANDUM OF AGREEMENT - FPN 256890-1-56-02 MEMORANDUM OF T
THIS AGREEMENT, made and entered into this 13 day of 1 A1
_ � by d the Ott Flrid , prtt rrprttir�# ir. r
referred to 7D07' and the State of Florida, Department f Financial Services,
Division f Treasury and Clity of QgAnMater hereinafter referred to the
"Participant".
WITNESSETH
WHEREAS,S, "F T' is currently constructing the following project,
Financial Project Number: 256890-1-56-02
Co nty: Pinellas
hereinafter referred to as the "Project".
NOTE: ONLY THE NEXT TWO PARAGRAPHS AY BE MODIFIED AS APPROPRIATE
WITHOUT PRIOR APPROVAL OF FDOTS COMPTROLLER.
WHEREAS, FDOT and the Participant entered into a Locally Funded
Agreement dated 1 rch 7th 2006, wherein DOT agreed to perform certain work on
behalf of the Participant ire conjunction with the Project,
WHEREAS, the parties to this AGREEMENT mutually agreed that it would be in
the best interest of the FT and the Participant to establish an interest bearing escrow
account to provide funds for the work performed on the Project on behalf of the
Participant by the F .
NOW THEREFORE, in consideration of the premises and the covenants nt contained
herein, the parties agree to the following:
1. Are initial deposit in the amount of I i" n Hrar�dr d ni � v r�
thousand three hundred and sixty byo dollar] will be rude by the Participant into an
interest bearing escrow account established by the FDOT for the purposes of the
project. Said escrow account will be opened with the Department of Financial Services,
Division f Treasury, Bureau of Collateral Management on behalf of the FDOT upon
receipt of this Memorandum of Agreement. Such account will be an asset of FDOT.
a Other deposits will be made only by the Participant as necessary to cover
the cost of additional work prier to the execution of any Supplemental Agreements.
,
GAf3 ADMI
. All deposits shall be made payable to the Department_of Financial
Services, Revenue Processing and mailed to the FD OT Office of Comptroller for
appropriate processing at the following address;
Florida Department rtment f Transportation
Office of Comptroller
605 Suwannee Street
Mail Station -
Tallahassee, Florida 32399
ATTN: LFA Section
A copy of this Agreement should accompany any deposits. When the check is
mailed to Ili the tri ct Office should instruct rat to
mail the i tr ice a copy of the ..
, The FDOTs Comptroller and/or her designees shall be the sole signatories
on the escrow account with the Department of Financial Services and shall have sole
authority to authorize withdrawals from said account.
Unless instructed otherwise by the parties hereto, all interest accumulated
in the escrow account shall remain in the account for the purposes of the project as
defined in the LF, b
, The Department of Financial Services agrees to provide written
confirmation of receipt of funds to the FDOT.
The Department of Financial Services further agrees to provide periodic
reports to the FD OT.
STATE�XC F FLORIDA ATE 8 ZFF L I
DEPARTMENT OF TRANSPORTA-HON DEPARTMENT OF FINANCIAL SERVICES
COMPTROLLER DIVISION OF TREASURY
P TICIP I T SIGNATURE
William B. II I° ... a nager
PARTICIPANT NAME & TTTLE
112 S. Osceola Ave. , Clw, Fl
PARTICIPANT ADDRESS
59-6000289
FEDERAL EMPLOYER I.D. NUMBER
��o-o�o-oa
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION UTILITIES
oan o
UTILITY WORK ORDER CHANGE NO. 1
A.
1.
2.
B.
C.
The Agency is hereby authorized to observe the following changes in the plans and/or specifications to the subject Utility
Agreement, and to perform such work accordingly, further described as:
Relocation of naturai gas facilities within the above referenced project as referenced in the revised roadway plans dated October,
2011.This Change Order #1 revises the Agreement amount to match Engineering Estimate dated March 14, 2011.
The items of work covered by this Work Order Change are referenced to an Agreement of record dated March 7, 2006, and no
Supplemental Agreement is required.
1. The Utility Relocation Work is to conform to that shown by the utility adjustment pians as:
a. ❑ ATTACHED.
b. � INCLUDED IN THE HIGHWAY CONTRACT PLANS.
2. The cost of this Utility Work is:
a. � NONREIMBURSABLE
b. ❑ REIMBURSABLE
(1) ❑ Force Account Method
(2) ❑ Lump Sum Method
(3) ❑ Third Party Contract Method
ESTIMATED COST OF WORK DUE TO THIS CHANGE:
ITEM NO. ITEM UNIT UNIT WORK ELIMINATED (-) ADDITIONAL WORK (+)
PRICE QUANTITY AMOUNT QUANTITY AMOUNT
1 Utility Work 1 $400,000.00
2 Rev. to Est. 1 $197,362.50
Sub-Totals ............................................................................................... $400,000.00 $197,362.50
Net Cost ot Construction Changes, this order ......................................... ($202,637.50)
Cost of Construction Changes, previously ordered ................................. $,0.00
Net Total Cost Construction Changes to Date ........................................ ($202,637.50)
Contract Amount ...................................................................................... $400,000.00
Estimated Cost of Work Authorized to Date ............................................ $197,362.50
Recommended:
Date
District Utility Coordinator
Approved:
Date
District Utility Engineer/Administrator
Approved:
Date
Division Administrator
Federal HighwayAdministration
Typed Name Typed Name Typed Name
RESOLUTION NO. 06-03
A RESOLUTION OF THE CITY OF CLEARWATER,
FLORIDA, APPROVING THE EXECUTION OF A UTILITY
WORK BY HIGHWAY CONTRACTOR AGREEMENT WITH
THE STATE OF FLORIDA DEPARTMENT Of
TRANSPORTATION REGARDING RELOCATION OF
NATURAL GAS MAINS FOR THE IMPROVEMENT
PROJECT FOR STATE ROAD SR55 (US19) FROM
NORTH OF SUNSET POINT TO SOUTH OF
COUNTRYSIDE BLVD.; PROVIDlNG AN EFFECTIVE
DATE.
WHEREAS, the State of F'lorida Department of Transportation (FDOT) has a
project #o widen/improve Sta#e Road 55 (US 19) from Sunset Point to Countryside Blvd.
including roadway, sidewalk, other improvernents and utilities to include thase existing
Clearwater Gas System facilities which conffict with the design; and
WHEREAS, under the Utility Work By Highway Cantractor Agreement, the
FDOT's general contractor wili perform the relocation of existing natural gas mains; and
WHEREAS, having FDOT's generaf contractor relocaie the natural gas mains
allows for the work to be clone in a timely manner and releases Clearwaier Gas System
from penalty payments; now, therefore,
BE iT RESOLVED BY THE ClTY COUNCiL Q� THE CITY
�F CLEARWATER, �LORIDA:
Section 1. The City Council hereby accepfs and approves the Joint Project
Agreement befween the City and the State of Flarida Deparfinen# of Transportatior�,
identified as Utili#y Work By Highway Contractor Agreement, FinanciaE Project ID
256880-1-56-02, a copy of which is at#ached as Exhibit A.
Section 2. The City Council hereby authorizes the Mayor and City Manager to
sign the Utility Work By Highway Contractor Agreement described in this resolution and
associated documents.
. Section 3. This resolution shall take effect immediately upon adoption.
.�-z
,r�.� �,.�° pASS�D:AND ADOPTED this I9th day o# �anuarv , 2006.
I licreby cGrtlfp tha� i}�js�is,,�'tn�e arld ,
correcf at�yuf,tl�e oTig n�l.ac,i['aype;�Ya ' . �
in 4he files, of` tjio Git�-of Cleanvater, ••�
�1'itn�5s. n�y ;h'��d: and cial s.eal of �� ' � '`� fr�'�,�+
tl�c Cit � f (71c�i er.� . ' � _- .`•�>'L�.'"°'�„ ��'"y�'Y"� ,�''�'�
L_
�t ' af 20� � 6 �r�nk Hibbard �
e ��yc�� aerk � � Mayor
,i)�.''.
� �- .J:.,:�..,� a
Approued ��s to form: Attest:
-' � r� ` ��-�'(�.�.�..,, ��--�,-=..ti.�.1.fi.__a__
Laura Lipowski Cynt 'a E. Goudeau �'
Ass�stant City Attorney City lerk
Resolution No. 06-03
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION Form No. 710-010-22
UTIL1TiES
UTILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT �oro+
(AT UTILITY EXPENSE)
Financial ProJect ID: 256890-1-56-02 Federal Project ID: NlA
County: Pinellas State Road No.: 55
District Document No: 1
Ufility AgencylOwner {UAO): Clearwater Gas System
THIS AGREEMEN7, entered into this � 7K day of M��e�µ , year of�C , by and between #he STATE
O� FLORIDA DEPARTMEN7 OF 7RANSPORTA710N, hereinafter referred to as the "FDOT", and Clearwater Gas
System, hereinafter referred to as the "UAO";
WITNESSE7H:
WHEREAS, the FDOT, is cons#ruciing, reconstruc#ing, or otherwtse changing a portion of a public road or
publicly owned rail corridor, said project being fdent'sfied as US 19 From N. of Sunset Pt. to S. of Countrvside 81vd.,
State Road No.: 55, hereinafter referred to as the "Projecf'; and
WHEREAS, the UAO owns or desires to install certain utility factlities which are located within the limits of the
Project hereinafter referred to as the "Facilities" (said term shall be deemed to iriclude utility facilities as ihe same may
be reiocated, adjusted, installed, or placed out of senrice pursuant to ihis Agreement); and
WHEREAS, the Project requires the Eocation (vertically and/or horizontaSly), protection, relocation, installation,
adjustment or removal of the Facilities, or some combination thereof, hereinafter referred to as "Utility Work' ; and
WHEREAS, ihe FDOT and #he UAO desire to enter into a joint agraement pursuant to Sectior� 337.4Q3(1)(b),
Florida Statutes for the Utility Work to be accomplished by the FDO7's contractor as pari of the construction of the
Project; and -
WFiEREAS, fhe UAO, pursuant #o lhe terms and condilions hereof, will bear ceriain costs associated with fhe
Utility Work;
NOW, TNEREFOF2E, In consideration of fhe premises and the mutual covenants contained herein, the FDOi
and the UAO hereby agree as folfows:
1. Design of Utility Work
a. UAO shall prepare, at UAO's sole cost and expense, a finaf engineering design, plans, fechnical
special provisions, a cost estimafe, and a contingency Utility Work Schedute (said contingency
schedule to be used in the case of a bid rejection) for the Utility Work (hereinafter referred to as the
uPlans Package") on or before April 21, year of 2006.
b. The i'lans Package shaii be in fhe same format as the FDOT's contract documents for the Project
and shall be suitable far reproduction.
c. Unless otherwise specifically directed in writing, the Plans Package sha11 include any and all activities
and work effort required to perform the Utility Work, including but not limited to, all clearing and
grubbing, survey work and shall include a traffic control plan.
d. 7he Plans Package shall be prepared in compliance with the FDO7's UtflityAccommodation Manual
and the FDO7's Plans Preparation Manual in effec# at #fi�e time fhe �lans Package is prepared, and
the FDOT's contract documents for the Project. If fhe FDOT's Plans Preparation Manual has been
updated and conflicts with the Utility Accommodation Manual, the UtilityAccommodation Manual shall
apply whare such conflicts exist.
e. 3he technical special provisions which are a part of the Plans Package shali be prepared in
accordance with the FDOT's guidelines on preparation of technical special provisions and shail not
Page 1 of 9
S7A7E OF FLOt21DA DEPARTMENT OF TRANSPOi2TATION vorm t1o. �ao-otazz
UTILiTIES
UTILITY WORK BY FiIGHWAY CONTRACTOR AGREEMEN7 ��
(AT UTILITY EXPENSE)
duplicate or change the general contracting provisions of the FDOT's Standard Specificafions for
Road and Bridge Construcfion and any Supplemental Specifiications, Special Provisions, or
Developmenfal Specifications of the FDOT for the Project.
f. UAO shall provide a copy of the proposed Pians Package to the F'DOT, and to such ofher right of way
users as designated by the FDOT, for review at the following stages: 60%, 90% & Final. Prior to
submissian of the proposed Ptans Package for review at these stages, ihe UAO shaJl send #he FDOT
a work progress schedule explaining how the UAO will meet the FDOT's production schedule. The
' work �rogress schedule shall inciude ihe review stages, as well as other milestones necessary to
complete the Plans Package wifhin the time specified in Subparagraph a. above.
g. In the event that the FDO7 finds any de�c9encies in the Plans Package during the reviews performed
pursuant to Subparagraph f. above, the FDOT wi11 nofify the UAO in writing of the deficiencies and #he
UAO will correc# ihe de�ciencies and refurn corrected documents within the time stated in the notice.
The FDOT's review and approval of the documents shall not relieve ihe UAO from responsibility for
subsequently discovered errors or omissions.
The FDOT shatl furnish the UAO such information from the Fb07's files as requested by the UAO;
however, fhe UAO shall at all times be and remain solely responsible for proper preparation of the
Plans Package and for verify9ng all information necessary to properly prepare fhe Plans Pacfcage,
including survey information as to #he location (6oth vertical and horizontal) of the Facilities. The
groviding of information by the FDOT shall not relieve the UAO of this obligation nor transfer any of
ihat responsibility to #he Fp�T.
The Facilities and the Utilily Work will include a11 utility faciliiies of ihe UAO which are located within
the limits of the Project, except as generally summarized as follows: NIA. These exceptions shall be
handfed by separate arrangement.
j. IF any facilitfes of the UAO located within the project iimi#s are discovered after work on the project
commences to be quali#ied for relocation at the FDOT's expense, but not previously identified as
such, the UAO shall �le a claim with the FDOT for recovery of #he cost of retocafion ihereof. The
filing of the claim shali not necessariiy enti#!e the UAO to payment, and resolution of the claim sha11 be
based on a determination of fault for the error. The discovery of facllities not prevlously fdentified as
being qualified for relocation at the FDOT's expense shall no# invalidaie this Agreement.
k. The UAO shall fu!!y cooperate with a11 other right of way users in the preparation of the Plans
Package. Any conflicts that cannot be resolved through cooperation shall be resolved in the manner
determined by ihe FDOT. �
Upon completion of the Utility Work, the Facitities sha[I be deemed to be located on the public road or
publicly owned rail carridor under and pursuant to the Utility Permit: endin
(Nofe: !f is the intenf of this line to allow either attachment of or separate reference !o the permifJ.
2. Performance of Utility Work
The FDOT shall incorporate the P1ans Package into its contract for construction of #he Project.
b. The FDOT shal} procure a contract for construciion of the Project in accordance with the FD07's
requirements.
c. If the portion of the bid of the contrac#or selected by the FDOT which Is for performance of the Ufility
Work exceeds the FDOT's official estimate for the Utility Work by more than ten percent ('t4%) and
the FDOT does not etect to participate in the cost of the Utility_ Work pursuant to Section
337.443(1)(b), �lorida Sfatutes, the UAO may elect to have the Utiiity Wark removed from the
FDOT's contract by notifying the FDOT in writing within ten 10 days from the date that the UAO is
notified of the bid amount. Unless this election is made, the Utiliiy Wark s�all be performed as part of
Page 2 of 9
STATE OF FLORIDA DEPARTMEN7 OF 7RANSPORTATION FormRo. �14010-22
UTILITtES
UTILITY WORK BY F1IGHWAY CONTRACTOR AGREEMENT aoro4
(AT UTILI7Y EXPENSE)
ihe Praject by the FDOT's contractor.
d. lf the UAO elects to remove the Uiility Work from ihe FDOT's contract in accordance with
Subparagraph 2. c., the UAO shall perform the Utility Work separately pursuant to the #erms and
condi#ions of fhe FDOT's standard refocation agreement, the terms and conditions of which are
incorporated herein for that purpase by this reference, and in accordance with the contingency
re{ocation schedule which is a part of the Plans Package. The UAO shall proceed immediately with
the Utility Work so as #o cause no deJay to the FDOT or ihe FDOT's contractor in constructing the
Project.
e. The UAO shall perform all engineering inspection, testing, and monitoring of the Utility Work to insure
that it is properly performed in accordance with the Plans Package, except for the following activities:
N/A and will furnish the FDOT with daily diary records showing approved quantities and amounts for
weekly, monthly, and final esiimafes in accordance with the format requfred by FD07 procedures.
Except for the inspection, testing, monitoring, and reporting io be performed by the UAO in
accordance with Subparagraph 2. e., fhe FDOT wilt pe�form all contract administration for its
construction contract.
g. The UAO shall fully cooperate with the FDOT and fha FDOT's contractor in all matters relating to the
performance of the U#iliiy Work.
h. The FDOT's engineer has full authority over the Project and #he UAO shall be responsible for
coordinating and caoperating with fhe FDOT's engineer. In so doing, the UAO shafl make such
adjustments and changes in the Plans Package as the FDOT's engineer shalt determine are
necessary for the grosecution of the Project.
The UAO shall not make any changes tfl ihe !'lans Package after the date on which ti�e FDOT's
coniract documents are mailed to Tallahassee for advertisement of the Project unless those changes
fall within the categories of changes which are allowed by supplemental agreement to the Fb07's
coniract pursuant to Sec#ion 337.11, Florida Statutes. Atl changes, regardless o# the nature of the
change or fhe timing o# ihe change, shall be subject to the prior approvaf of the FD�7.
Cost of Utllity Work
a. The UAO shali be responsible for all costs of the Utility Work and all costs associated with any
adjustments or changes to the U#ility Work determined by the FDOT's engineer to be necessary,
including, but not limited to the cost of changing fhe Plans Package and the increase in the cost of
performing the Utitity Work, unless the adjustments or changes are necessitated by an error or
omission of the FDOT. The UAO shall not be responsible for the cost of delays caused by such
adjustments or changes unless they are attributable to #he UAO pursuant fo Subparagraph 4.a.
b. The initial estimate of the cost of the Utility Work is 400 000. Af such time as the FDOi prepares its
official estimafe, the FDOT shall noiify the UAO of the amaunt of fhe officia! estimafe for the Utilify
Work. Upon being noiified of the official sstimate, the UAO shall have five {5) wbrking days within
which to accept the of�cial estimate for purposes of making deposits and for determining any possible
contribution on the part of the FDOT io the cost of the Ufility Work, or to elect to have fhe Utility Work
removed from the FD07's confract and performed separateiy pursuant to the ferms and conditions
set forth in Subparagraph 2. d. hereof.
c. At least Fourteen (1� calendar days prior to the date on whicn the FDOT advertises the Project for
bids, the UAO will pay to the FD07 an amount equal io the FDOi's official estimate; plus 5% for
administrative cosis of fiefd work, iabulation of quantities, Final Estimate processing and Project
accouniing {said amounts are to be hereinafter collectively referred to as #he Allowances); plus 10%
of the of�cial estimate for a contingency fund ta be used as hereinafter provided for changes to the
Utifity Work during the canstruction of the Project (the Confingency Fund).
Page 3 of 9
STA7E OF FLOitlDA DEPARTMENT OF TRANSPORTATION �� No. noAta22
UTILfTIES
UTILITY WORK BY HIGHWAY CON7RACTOR AGREEMENT ��
(AT UTILITY EXPENSE}
Payment of the funds pursuant ta ihis paragraph will be made {choose one):
❑ directly to the �D07 for deposit into the State Transportation Trust Fund.
� as provided in #he attached Memorandum of Agreement beiween UAO, FDOT and the
State of Florida, Department of Financiai Services, Division of Treasury. DeposiEs of less
than $100,000.00 musi be pre-approved by the Department o# Financial Services and
FDOT Comptroller's Office prior to execution of this agreement.
e. If the po�ion of the contractor's bid selected by the FDOT for performance of the Uiility Work exceeds
the amounf of the deposlt made pursuant to Subparagraph c. above, then subject to and in
accordance with ihe limitations and conditions esfablished by Subparagraph 2. c. hereof regarding
FDOT participatio� in the cost of the Utiliiy Wark and the UAO's election to remove the Utility Work
from the Project, the UAO shail, within fourteen (14) calendar days fram no#ifcation from the FD�T or
prior to .posting of ihe accepted bid, whichever is earlier, pay an add[tional amount to ihe FDOT to
bring the iota! amount paid to the tatal obligation of the UAO for the cost of the Uti{ity Work, plus
Allowances and 90% Contingency �und. i"he FDOT will notify the UAO as soon as it becomes
apparent 1he accepted bid a�nount plus ailowances and contingency is in excess of the advance
deposi# amounf; however, failure of the FDOT to so notify the UAO shaii not relieve the UAO from its
obligation to pay for its full share of project costs an final accouniing as provided her�in below. ln t�e
event that the UAO is obligated under this Subparagraph 3.e. to pay an additional amount and the
additional amount that the UAO is obligated fo pay does not exceed the Contingency Fund already on
deposit, the UAO shalf have sixty (60) calendar days from notification from the FDOT to pay the
additional amount, regardless of when the accepted bid is posted.
{f the accepted bid amount plus allowances and contingency is less than the advance deposit
amount, fhe FDOT will refund the amount that the advance deposit exceeds the bid amount, plus
allowances and contingency if such refund is requested by the UAO in writing and approved by the
Comptraller o# ihe FDOT or his designee.
g. Should confract modifications occur thaf increase the UAO's share of tota[ project costs, ihe UAO will
be notified by ihe FDOT accordingly. The UAO agrees ta provide, in advance af the addifional work
being performed, adequate funds io ensure that cash on deposit with the FDOT is sufficient to fully
fund its share of ihe project costs. The FD4T shall notify fhe UAO as soan as it becames apparent
the actual costs will overrun the award amount; however, failure of ihe FDOT to so notify the UAO
shall not �elieve the UAO from its obligation to pay for its fult share of project casts on final accounting
as provided herein below.
The FDOT may use the funds paid by the UAO for payment of the cost of the Utility Work. The
Contingency Fund may be used for increases in the cosi of the Utility Work which occur because of
quaniiry overruns or because of adjustments or changes in the Utility Work made pursuant to
Subparagraph 2, h. Prior to using any of the Contingency Fund, ihe FDOT wifl obiain the wriften
concurrence of ihe person delegated that responsibility by written notice from the UAO. The
delegatee shall respond immediately to all requests for written concurrence. If the delegatee refuses
to provide written concurrence promptty and the FDOT determines thaf the work is necessary, the
FD07 may proceed to perform the work and recover the cost thereof pursuant to the provisions of
Section 337.403{3), Florida Statutes. In ihe event that the Cantingency Fund is depleted, the UAO
shall, within faurteen (14) calendar days from notification from the FDOT, pay fo the FDOT an
additional 10% of the total abligation of the UAO for the cost af the Utility Work established under
Subparagraph 3. e. for future use as the Contingency Fund.
Upon finai payment ta the Contractor, the FDOT intends to have its �nal and compiete accounting of
all costs incurred in connection with the work performed hereunder within three hundred sixty (360)
days. All projecf cost records and accounts shall be subject fo audit by a representative of the UAO
Page 4 of 9
STATE OF FLORIDA DEPAR7MENT OF TRANSPORTATION Fotm No_ 710-010.22
UTILITIES
UTILI7Y WORK BY H1GIiWAY CONTRAC70R AGREEMENT tora
(AT UTILI7Y EXPENSE)
for a period of threa (3} years after final close ouf of fhe Project. The UAD will be notified of the �nal
cosi. Both par#ies agree ihat in the event the final accounting of total project costs pursuant to 1he
terms of thfs agreement is less ihan the total deposits fo date, a refund o# the excess will be made by
the FDOi to the UAO in accordance with Section 215.422, Florida Statutes. In the event said final
accounting of total project cos#s is greater than the total deposits to da#e, the UAO will pay the
additional amount within forty (40) calendar days from the date of the invoice. The UAO agrees to
pay interest at a ra#e as established pursuant to Section 55.d3, Florida Statutes, on any invoice not
paid within ti�e time speclfied in the preceding sentence until the invo'tce is paid.
4. Claims Against UAO
a. The UAO shall be responsible for all costs incurred as a result oi any delay to ihe FDOT or its
contractors caused by errors or omissions in the Plans Package (including inaccurate location oi the
Faciliiies) or by failure of the UAO to properly perform its obligaiions under this Agreement in a timely
manner.
b. In the event the FDOT's contractor provides a nofice of intent to make a claim against the FDOT
relaling to the Utility Work, the FDOT will nofify the UAO of the notice of intent and fhe UAO will
thereafter keep and maintain daily field repor#s and aIl other records relating to ihe intended claim.
c. In fhe event the FDOT's contractar makes any claim against the FDOT relating to #he Utility Work,
the FDOT will notify the UAO of the cfaim and the UAO will cooperate with the �DOT in analyzing and
resolving the ctaim within a reasonable fime. Any resolufion of any portion of the claim directly
between the UAO and the FDO7's contractor shall be in writing, shafl be subject to written FDOT
concurrence and shall specify the extent to which it resolves ihe claim against the FDOT.
d. The FDOT may wiihhold payment of surplus funds to the UAO until final resolution (including any
actual payment required) of all claims relating to ihe Utilily Work. The right fo withhald shall be limited
to actuat claim payments made by the FDOT to the FDOT's contracior.
5. Out of Service Faclltties •
No Facilities shall be placed out of service unless specifically identified as such in ihe Plans. 7he following
terms and conditions shall apply to Facilities placed Out-of-Service:
a. The UAO acknowledges i#s present and continuing ownership of and responsibility for out of service
�acilities.
b. The FD07 agrees #o allow the UAO to leave the Facilities within the right of way subjec# to the
continuing satisfactory performance of the conditions of this Agreement by the UAO. !n the event of a
breach of this Agreement by the UAO, the Facilities shall be removed upon demand from the FDOT
in accordance with the provisions of Subparagraph e. belaw.
c. The UAO shall take such steps to secure the Facilities and otherwise make the Facilities safe in
accordance with any and alt applicable local, stafe or federal faws and regulations and in accordance
with the legal duty of the UAO to use due care in its dealings wiih others. The UAO shall be solely
responsibte for gafhering ali information necessary to meet these obligations.
d. The UAO shall k8ep and preserve ali records relating to the Facilities, including, but not limited to,
records of the location, na#ure of, and steps taken to safely secure ti�e Facilities and shafl promptly
respond to information requests of the FDOT or other permittees using ar seeking use of the right af
way.
e. 7he UAO shall remove #he Facilities at the request of fhe FDOT in the event ihat #he FDOT
determines thak removal is necessary for �DOT use of the right of way or in the evenf that the FDOT
Page 5 of 9
STATE OF FLORIDA DEPARTMEN7 OF TRANSPORTATION Fam No, 710�010•22
U71lIT1ES
U7ILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT ���
(AT UT1LIiY EXPENSE)
determines ihat use of the right of way is needed for other acfive utifities that cannot be oti�ervuise
accommodated in the right of way. Removal shall be at the sole cost and expense of the UAO and
without any right of the UAO to object �r make any claim of any nature whatsoever wit� regard
thereto. Removal shall be compie#ed within the time speci�ed in the FDOT's notice to remove. In the
event that the UAO fails to perform the removal properiy within the specified iime, the FDOT may
proceed to perEorm the removal at the UAO's expense pursuani fo the provisions of Sections 337.403
and 337.404, Florida Statutes.
Except as otherwise provided in Subparagraph e. above, the UAO agrees that the Facilities shall
forever remain the legal and financial responsibility of the UAO. 7he UAO shal) reirnburse #he FDOT
for any and all costs of any nature whatsoever resul#ing from #he presence of the Facilities within the
right of way. Said costs shall inc�ude, but shali not be limited #o, charges or expenses which may
result from the future need to remove the Facilities or from the presence of any hazardous substance
or material in or discharging from the Facilities. Nothing in this paragraph shall be interpreted to
require #he UAO to indemnify the FDOT for the FD07's own negtigence; however, it is the intent that
all other costs and expenses of any nature be the responsibility of the UAO.
Defauit
a. tn the event that fhe UAO breaches any provision of ihis Agreement, then in addition to any other
remedies which are oiherwise provided for in this Agreemer�t, the FDOT may exercise one or more of
the following options, pro�ided that at no iime sha11 the FDOT be entitled to receive doubte recovery of
damages:
(1) Terminate this Agreement if ihe breach is material and has not been cured within sixiy (60)
days from written noiice thereof from FDOT.
(2) Pursue a claim for damages suffered by the FDOT.
(3) ff #he U#ility Work is reimbursable under this Agreement, withhold reimbursement payments
until #he breach is cured. The right io withhotd shall be limited to actual claim paymenfs
made by FDOT to third pariies.
{4) If the Uiility Work is reimbursable under this Agreement, offset any damages suifered by the
FDOT ar the public against payments due under this Agreement far the same Project. The
right to offset shall be limited to ac#ual claim paymsnts made by FDOT to third parfies.
{5) Suspend the issuance o# further permits to the UAO for the placement of Facilities on FDOT
property if the breach is material and has not been cured within sixty (60) days from written
r�otice thereof from FDOT.
(6) Pursue any other remedies tegally available.
(7) Perform any work with its own forces or #hrough contractors and seek repayment for tha cost
fhereof under Section 337.403{3), Florida Statutes.
b. In the event that ihe �DOT breaches any provision of this Agreement, fhen in addition to any other
• remedies which are otherwise provided for in the Agreement, the UAO may exercise one or more of
the follawing opfions:
(9) 7erminate fhis Agreement if the breach is material and has not been cured within sixty (60)
days from written notice thereof from the UAO.
(2) If the breach is a failure to pay an invoice for Utiliiy Work which is reimbursable under this
Agreemeni, pursue any stafutory remedies that the UAO may have for failure to pay invoices.
Page 8 of 9
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION For�►�o. i�o-o�o-2z
uram�s
U7ILITY WORK BY HIGHWAY CONTRACTOR AGREEMENT ��
{AT UTIUTY EXPENSE)
(3) Pursue any olher remedies legal{y available.
c. Termination of this Agreement shall not re(ieve either party from any obligations it has pursuant to other
agreements between #he parties nor from any statutory obligations that either party may have with regard
to the subject matter hereof.
7. Force Majeure
Neither the UAO nor the FDOT shall be liable io the other for any failure io perform under this Agreement to
the extent such performance is prevented by an act of God, war, riots, natural catastraphe, or other event
beyond the control of the non-performing pariy and which could not have been avoided or overcome by #he
exercise of due diligence; provided that the pariy claiming ihe excuse from performance has (a) promptly
notified the other party of the occurrence and its estimate duration, (b) promptly remedied or mitigated the
effect of the occurre�ce to the extent possible, and (c) resumed perfiormance as soon as possible.
8. � Indemnification
FOR GOVERNMEN7-OWN�D UTILI7IES,
To the extent provided by iaw, the UAO shall indemnify, defend, and ho(d harmtess the FDOT and all of its
officers, agents, and employees from any ctaim, Ioss, damage, cost, charge, or expense arising out of any
acis, action, error, neglect, or omission by the UAO, its agents, empfoyees, or contractors during the
performance of the Agreement, whether direct or indirect, arid whether to any person or property to which
FDOT or said parties may be subject, except that neither ihe UAO, its agents, employees, or con#ractors wili
be liable under this section for damages arising out of the injury or damage to persons or property directly
caused by or resulting from fhe negligence of the FDOT or any of its officers, agenfs, or employees during the
periormance of this Agreement. �
When the FDOT receives a notice of claim for damages that may have been caused by the UAO in the
performance of services required under this Agreement, the FD07 will immediatety forward the claim to the
UAO. The UAO and ihe FDOT wili evaluate the claim and report their findings to each oiher within fourteen
(14} working days and will jointly discuss options in defending the claim. Af#er reviewing #he claim, the FDOT
will determine whether to require fhe participation of the UAO in ihe defense of the claim or to require the UAO
to defend ihe FDOT in such claim as described in this section. The FDQT's failure fo notify the UAO of a
claim shall not release the UAO from any of the requirements of this section. The FDOT and #he UA� will pay
their own costs for the evaluation, seftiement negotiations, and trial, if any. However, if only one party
participates in the defense of fhe ctaim at trial, that party is responsible for a11 casts.
FOR NON-GOVERNMENT-OWNED UTILITIES,
The UAO shall indemnify, defend, and hold harmless the FDOT and ali of its oificers, agents, and employees
from any claim, loss, damage, cost, charge, or expense arising ouf of any acts, action, error, neglect, or
omission by ihe UAO, its agents, employees, or contractors during the performance of ihe Agreement,
whether direc# or indirect, and whether to any person or property to which FDOT or said parties may be
subject, except thaf neither the UAO, its agents, employees, or contractors will be liable under this secfion for
damages arising out of khe injury or damage to persons or property directly caused by or resulting from the
negligence of the FDOT or any of its officers, agents, or employees during the perf�rmance of thisAgreement.
The UAO's obligaiion to indemnify, defend, and pay for the defense or at the FDOT's option, to participate
and associate with the FDOT in the defense and trial of any damage claim or suit and any relaied settlement
negafiations, shall arise within fourteen {14} days of receipt by fhe UAO of ihe FDO7's notice of claim for
indemnification to #he UAO. The notice of claim for indemnification shall be served by certified mail. The
UAO's obligation to defend and indemnify within fourteen (14) days of such notice shall not be excused
because of the UAO's inability to evaluate liability ar because the UA� evaluates liability and determines the
Page 7 of 9
STATE OF FLORIDA DEPARTMENT OF TRANSPOR7AfilON �«� No. �ao-0ia22
ununEs
UTiLITY WORK 8Y HtGHWAY CONTRACTOR AGREEMENT +�<
(AT UTILI7Y EXPENSE)
UAO is not liable or determines #he FDOT is solely negligent. Only a finaf adjudication of judgment finding the
FDOT solely negligent shall excuse performance of #his provision by fhe UAO. The UAO shall pay all costs
and fees related to this obligation and its enforcement by the FDOT. The FD07's delay in notifying the UAO
of a claim shall not release UAO of the above duty to defend.
9. Miscellaneous
a. Time is of essence in ti�e performance of all obligatians under this Agreement.
b. The Facilities shall at al! times remain the property of and be properiy protected and maintalned by
the UAO in accordance with fhe current Utility Accommadation Manual in effect at the time the Plans
Package is prepared and the curreni utility permit for the �acilities; provided, however, that the UAO
shall not be obligaied to protect or main#ain any of the Facilities to the extent the FDOT's contractor
has that obligation as part of the Utility Work pursuant to the FDOT's specifications.
c. The FDOT tnay unilaterally cancel this Agreement for refusal by the UAO to altow public access to alf
documents, papers, letters, or other material subject to the provisions of Chapfer 119, Florida
Statutes, and made or received by the UAO in conjunction with this Agreement.
d. This Agreement constitutes the complete and finai expression of the parties with respect to the
subject matter hereof and supersedes a11 prior agreements, understandings, or negotiations with
respect thereto, except that the parties understand and agree that the FDOT has ►nanuals and written
policies and pracedures which may be applicable at the time of the Project and the relocaiion of the
Facilities.
e_ This Agreemenf shall be governed by the laws of the State of Florida. Any provision hereof found to
be unlawful or unenforceable shall be severable and shall not affect the validity of the remaining
portions hereof.
All notices required pursuant to the terms hereof may be sent by first class Unifed States Mail,
facslmile transmission, hand delivery, or express mail and shall be deemed to have been received by
the end of five business days from the pro�er sending thereof unless proof of prior actual receipt is
provided. The UAO shall have a continuing obtigation to notify each District of the FD07 of the
appropriate persons for notices to be ssnt pursuant to this Agreement. Unless otherwise nofified in
wriiing, notices shall be sent to the foltowing addresses:
lf to the UAO:
Mr. Bruce Griffin, Gas Proqram Coordinator
400 N. Myrtle Avenue
Clearwater, FL 33755
If io the FDO'i:
Mr. John M. Kubler, District Ufility Admin�stratar, FDOT
11201 N. McKinley Drive, MS 7-820
7ampa, FL 33612-6456
10. Certificaiifln
This documeni is a printout of an FDOT form maintained in an electronic format and all revisions thereto by
the UAO in #he form of additions, deletions, or substitutions are reflected only in an Appendix entitled Changes
To �orm Dacument ar�d no change is made in the text of the document itself. Hand notations on affected
portions of this dacument may refer to changes reflected in the above-named Appendix but are for reierence
purposes oniy and do not change the terms of the document. By signing this document, fhe UAO hereby
represents that no change has been made to the text of #his document except through the terms of the
appendix en#it(ed Changes to Form Document.
Page S oi 9
STATE O� FLOREDA DEPARTMENT OF 7RANSPORTA710N For,� No. »o•o�a22
UTILITIES
UTILI7Y WORK BY HIGHWAY CON7RAC7'OR AGREEMENT ��
(AT UTILiTY EXPENSE)
You MiJST signify by selecting or checking which of ti�e following applies:
❑ No changes have been made to this Form Documenf and no Appendix enti#led °Changes to Form
Document° is attached.
� No changes have been made to this Farm Document, but changes are included on the atiached Appendix
entitled °Changes to Form Dacument."
IN WITNESS WHERE4F, fhe parties herefo have executed this Agreement effective the day and year first written.
U71LIiY: Ciearwater Gas System
BY:(Siqnature} DATE:
(Typed Name: Ses Appendix )
(Typed 7itle� }
Recommend Approval by the bistrict Utility Offlce
BY: JSiqnature� i��tG`��Z�� �� � �/ DATE: �/ �/�'
Dtstrict Counsel
S7ATE OF FLORIDA
DEPARTMENT OF TRAN5PORTATlON
BY:
(Typed Name: Scott W. Coliister, P.E., CPCM)
(7yped Title: Director of Transportatton Develot�ment)
FEDERAL HIGHWAY ADMINISTRATION (if applicable)
217�0�
DA7E:
BY: DATE:
(Typed Name: )
{Typed 7itle• }
Page9of9
APPENDIX
Stato of Florida Department of Traosportation
UTILITY NORK BX AIGH�'VAY COPITRACTOR AGREE3YIEAIT
CHANGES TO FORMS DOCUNIENT
FPID:256890-1-56-42
Page 9 of 9, fo(lowing "lN WITNESS WHEREOF...year first �vithitt."
Add the followi�ig signature blocks following ttie "Utility,...(Typed Title}" blank:
Countersigi3ed: City of Clearwater, Florida
°.-•��'� � By: C��� :,c,.-�. Q-t-�-s.e.'�"
ra ibbard William B. Horne, II
Mayor City Manager
Appro e as to form: Attest:
�
�L ara Lipowski Cy t ia E. Goudeau
sistant City Attorney Ci lerk
�!rinc �orm
'�-mait Fo�m �
Received
DEC 0 6 2011
City Attorney
0
} ear�ater
�
U
REQUEST FOR LEGAL SERVICES FORM
TO: Laura Mahony
FROM: grian Lanqille Ext. No. �406
AUTHORIZED BY: Brian Langille �
Department: GA$ '
COPY TO: Pamela K. Akin, City Attorney w/o attachments
SUBJECT: Request for Leqal Services
DATE:
Re: FDOT aareement__
12/6/11
Service Required:(Click on appropriate box)
Review and comment on document �
Draft document �
Written opinion requested �
Advise �
1. Brief factual background of the request or problem:
This is a revised Memorandum of Agreement from the FDOT on the US19 road
construction project (between Sunset Point Rd & Countryside Blvd). The
original Utility Work by Highway Contractor Agreement (UWHCA) was '
approved by our City Council & FDOT in March 2006, however, the scope of '
work has changed. As a result the total cost has significantly lowered from
$400,000 to $197,362.
_ _ _. _ _ _
2. Specific questions to be answered:
Please advise if the City Manager can execute this new Memorandum of '
Agreement.
s:\�Forms\\Legal services form _
I_ _---- -_ ._ _._ __ __ _ _ __ ___. ___ ____ . ___
3. Identify prior legal assistance on this or a related matter and the name of the
attornev who handled it:
I_ _ __ --- — _ __ -- _ __ — �����
4. List and/or attach (all supporting documentation, related materials and known
authorities, i.e., statute, ordinance, resolution, administrative code, legal case,
contract, lease letter, memorandum, prior legal opinion):
s:\�Forms\\Legal services form